ASARO v. MICALI

ORDERED that the order is affirmed, with costs.

A jury verdict in favor of a defendant should not be set aside unless the evidence preponderates so heavily in the plaintiff's favor that the verdict could not have been reached on any fair interpretation of the evidence (see Lolik v. Big V Supermarkets, 86 N.Y.2d 744; Lenhart v. City of New York, 249 A.D.2d 516). Here, contrary to the plaintiff's contention, the jury determination that the defendant Joseph Micali (hereinafter the defendant) did not violate Vehicle and Traffic Law § 1146 was based upon a fair interpretation of the evidence, and thus, should not be disturbed (see Farrell v. Lewarn, 275 A.D.2d 760).

Since the defendant failed to comply with CPLR 3116(a), the Supreme Court incorrectly ruled that he would be allowed to use a corrected deposition transcript of his testimony in the event that the plaintiff used his original deposition testimony on cross-examination. However, any error in this regard was harmless. The plaintiff read the uncorrected deposition testimony to the jury, and the jury was never made aware of the corrected deposition testimony. The plaintiff's counsel was clearly able to adjust his trial strategy to account for this (cf. Cole v. Mandell Food Stores, 93 N.Y.2d 34; Roseboro v. New York City Tr. Auth., 286 A.D.2d 222; see Andoh v. Milano, 271 A.D.2d 358).

SANTUCCI, J.P., ALTMAN, FLORIO and FEUERSTEIN, JJ., concur.